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ADA Compliance
By Richard Holicky
Why? "They put the wheelchair seating where few people would choose to sit, but then inserted a couple rows in front so that no one could say the wheelchair seats were the absolute worst," he says. "Of course they weren't committed to providing 'full and equal enjoyment' to people in wheelchairs." "Often it's business owners or even lawyers who just don't get it," says Lainey Feingold, a San Francisco lawyer who specializes in architectural and technology access cases. "If they've had personal experience with someone with a disability," she says, "they understand that a fraction of an inch might as well be a foot, or that one step is the same as a flight of stairs. But many don't understand that." Amy Robertson, another Denver attorney, finds fault with some insurance companies and defense lawyers. "Because the ADA requires no damages and only the architectural changes needed to bring the building into compliance--which insurance companies do not pay for--sometimes all logic is removed from the defendants' strategy," she says. "Some will fight because they have nothing to lose." Robertson says that consultants and "expert" witnesses--who, for a fee, will bless a business's noncomplying architecture--are getting rich off the ADA. "They may have served as an industry rep," she says. "They may or may not even be architects. Generally they take a quick look at the premises and render the opinion that it complies. In one of our cases a widely used ADA consultant--nondisabled, for what that's worth--expressed the 'expert' opinion that it would be more 'dignified' for people using wheelchairs to enter a building from the back rather than from the front-door ramp we were requesting. I'm not kidding!
Unsympathetic, prejudiced business. Greedy, evil lawyers. They're the bad guys we love to hate and they make good copy. But there are less malevolent reasons behind ADA noncompliance. "There aren't any ADA cops, and the Department of Justice is overwhelmed," says Marc Fiedler, a Washington, D.C., attorney. "The law is very complicated and ambiguous. For example, just what does 'readily achievable' or 'undue hardship' mean? This is expecting a lot of small business owners, who may hire architects and contractors who they assume know the law but often don't. Many small businesses want to do what's right but don't know how." "Sometimes people get bad advice from their lawyers, who either have a poor understanding of the law or are looking to build up billable hours," says Tim Fox, Robertson's husband and law partner. "Some outfits feel it's not chic, or they're too cool to have a ramp out front." "And this is still a pretty new law," Fiedler says. To add perspective,
he notes that people of color are still fighting discrimination long after the enactment
of laws affecting their civil rights. "The disabled community needs to show the way by helping and providing incentives," Fiedler says. "We have to work with rather than against smaller businesses for compliance. I believe that in order to get ADA enforcement, people need to see things from the small business's perspective. If compliance won't increase business, it's not beneficial for them. We need to use our economic clout, and this is where groups in the disability community can be very helpful and effective." All the attorneys interviewed for this article say there simply aren't enough people willing to come forward and get involved. Full enforcement will only happen, they say, when pressure from the disabled community is too great to ignore. "Working toward enforcement and compliance takes day-to-day assertiveness, which is hard work," adds Fiedler. "It's not easy to be nonconfrontational. Maybe people lack the confidence, and the law may be too complicated for some. This is where we would do better if people with disabilities got together in numbers, learned the guidelines better and got some consultation." A good method for educating business owners might be the following:
Why aren't more people willing to sue or even complain? Litigation is, after all, the American Way. "People just want to see a movie without having neck strain and without filing a lawsuit," Williams says. "Instead, they stay home." "The ADA gets enforced more where compliance is pressed," says Feingold. "Businesses get away with it because no one's on them. For things to change, people need to become informed consumers and enforcers of the law." "I don't know why more people don't sue, and it drives me nuts," says Fox. "I think some people don't want to be seen as troublemakers. Others assume that lawsuits are very expensive, though accessibility cases really aren't. There are lots who see lawsuits as very traumatic experiences, but that's not always true, either. I've been a plaintiff. I've been deposed. It's not horrible." Fiedler helped found the Disability Rights Council of Greater Washington, D.C., a group of lawyers and advocates that, with the help of other Washington civil-rights lawyers, does pro bono work to improve accessibility. They often go after large businesses with records of accessibility violations at multiple locations. For example, DRC lawsuits have resulted in accessibility changes in more than 800 Safeways and hundreds of Burger Kings. These access cases seldom go further than filing. "They never go to trial, and they all settle," Fiedler says. "But there's not enough of that happening." The Sacramento center for independent living is one group that has made it happen. After doing their homework, and with the assistance of attorneys, they approached the management of the local arena and offered to negotiate. Now it's accessible. Feingold points to PVA's success in stadium accessibility cases, as well as her own success with stadium and arena access, 1,000 talking ATMs and more than 5,000 accessible gas stations nationwide. In Denver, the Colorado Cross-Disability Coalition has successfully taken on Taco Bell, Wendy's, Mann Theaters and several large music venues. And don't forget the power of the press, they counsel. "For every positive article I see in the mainstream press," Fox says, "I see about 10 negative ones regarding the ADA. I think a real danger comes from the PR campaigns launched by opponents of the ADA. We need press emphasizing the positive changes." In spite of the many blatant violations, anyone disabled 15 years or more will
tell you there are positive changes--especially in the realm of accessible public
accommodations. "There's been a huge amount of change since the ADA became law,"
says Feingold. If you want to keep that change happening, you'll need to learn at least the basics of what the law requires. Local libraries or independent living centers are good places to start. Confidently and knowledgeably citing the law lends credibility and increases the likelihood that the people with the power to initiate change will listen. Writing letters is a good way of documenting what you've done. Letters should explain both the problem and the remedy. Fiedler suggests referring to an access barrier as an obstacle to you as a customer, rather than as a violation of the law. Request a response by a specific date. "Photos are helpful," says Feingold, "as is a call to the local building inspector to confirm the violation. While inspectors won't enforce the law, you can work to get them more involved and aware of it." If these efforts don't produce results, it's probably time to turn up the heat with the support of an organization, an attorney, or both. ADA-enforcement work is tailor-made for ILCs and advocacy groups, falling within many of their funding mandates and allowing them to exert political influence. And working in groups serves to generate awareness through news coverage and letters to the editor. The ultimate recourse is engaging a lawyer and filing a suit. But make sure you've done some of the grunt work first. "Lawyers are more likely to be receptive if you've done some research," says Fiedler. "The case needs to be solid; it needs to be worth the expense to file and pursue." Although the ADA does not provide for damages, it does allow fee shifting, meaning that when defendants lose they're responsible for everyone's legal fees and expenses, including the cost of expert witnesses. That gives lawyers some assurance that a pay day will follow successful litigation. "Lots of lawyers don't do ADA work because they don't know this," says Feingold. "Lots of work is done by nonprofits." Finding those nonprofits might take some digging, but you can start at your ILC or other disability rights organization. The Disability Rights Education and Defense Fund does access work on a national level and may be able to provide a local referral. Another national program is PAIR (Protection and Advocacy for Individual Rights), the federally mandated ADA-enforcement program found in every state. Several federal agencies provide technical support. Check the ADA Listserv run by the North Dakota University System. Inquire at your local bar association for referrals. Ask around, don't give up. The civil rights movement was far more than Rosa Parks and Martin Luther King, and ADA enforcement requires far more than a few prominent activists. It will take lots of foot soldiers to win the national case for the ADA.
dr002
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When the ADA became law nine years
ago, most people with disabilities assumed that the front door would open and the
world would graciously show us to our table at the communal feast. So why is it that
we continue to be sent around the back, down the street or over to the next block
where there may or may not be a curbcut? Why don't building inspectors enforce codes?
Why is the Justice Department so apathetic? And why do we hear the same old tired
excuses? "The law doesn't apply to us." "We only lease the building."
"That's only for new construction." Sometimes it seems as if little has
changed.
- 20th Anniversary of ADA Reflection Jul 26
- Community Choice Act: Recession Proof Jun 17
- Very Special Glee Episode May 12
- Hope, Love, Trust and ADAPT Apr 27
- ADA: A Personal Reminiscence Apr 26
